Pioneer Concrete Co., 264 (1979)

Docket Number:20-CA-13882
 
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD

W. Carter Maxwell, d/b/a Pioneer Concrete Co. and Leon Cantrell. Case 20-CA-13882

March 20, 1979 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS PENELLO

AND TRUESDALE

On December 19, 1978, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a letter in support thereof. Respondent thereafter filed a letter in response to the General Counsel's letter.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, W. Carter Maxwell, d/b/a IThe General Counsel has excepted to the Administrative Law Judge's finding that the misunderstanding concerning the amount and purpose of the 'vacation' check given by Respondent to Cantrell at the time of his discharge was later corrected. We find merit in that exception, inasmuch as the record is unclear as to whether the check was intended to encompass vacation pay and/or severance pay, and as to whether the matter was later corrected by the parties. Therefore, for the purposes of computing Cantrell's backpay, the issue concerning the amount and purpose of the 'vacation' check shall be left to the compliance stage of this proceeding.

The General Counsel has also excepted to the Administrative Law Judge's recommended remedy insofar as it recommends that interest on backpay should be computed at a rate other than the 9 percent requested by the General Counsel. We find no merit in that exception. See Florida Steel Corporation, 231 NLRB 651 (1977).

In adopting the Administrative Law Judge's finding that Respondent violated Sec. 8(aX3) and (1) of the Act by discharging Cantrell, we rely solely on the Administrative Law Judge's reasoning that said discharge was caused 'in substantial part' by Cantrell's insistence on being paid overtime pursuant to the collective-bargaining agreement.

In adopting the Administrative Law Judge's finding that the instant case should not be deferred to the grievance-arbitration procedure. Chairman Fanning relies on the Board's decision in General American Transportation Corporation, 228 NLRB 808 (1977). Member Penello, who dissented in General American Transportation Corporation, would not defer because there is no assurance that the grievance, in its present posture, would be considered on the merits by an arbitrator. Member Truesdale finds it unnecessary to pass on the Board's decision in General American Transportation Corporation under the circumstances of the instant case.

Pioneer Concrete Co., Santa Rosa, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

DECISION

STATEMENT OF THE CASE

RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard in Santa Rosa, California, on September 21 and 22, October 23 and 24, 1978.' The complaint, 2 issued July 14, is based upon a charge filed June 8 by Leon Cantrell, 3 an individual. The complaint alleges that W. Carter Maxwell, d/b/a Pioneer Concrete Co. (Respondent), violated Section 8(a)(l) of the National Labor Relations Act, as amended, by asking an employee to obtain a copy of the employee's statement given to a representative of the National Labor Relations Board and violated Section 8(a)(3) and (1) of the Act by discharging Cantrell because of his union or other activities protected by the Act.

All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.

Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following:

FINDINGS OF FACT

  1. JURISDICTION Respondent is, and at all times material herein has been, a sole proprietorship with a place of business in Santa Rosa,

    California, where it is engaged in the production and sale of ready-mixed concrete. During the past year Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000, nearly all sales being at retail.' The complaint alleges that during the past year Respondent, in the course and conduct of its business operations, purchased and received goods, materials, and supplies valued in excess of $3,000 which originated outside the State of California. Respondent denied that allegation. At the hearing, the General Counsel proved conclusively, and without any proof to the contrary submitted by Respondent, that during the period of time relevant herein Respondent purchased goods, materials, and supplies valued in excess of $6,000 which originated outside the State of California and which were shipped directly to Respondent, or which were sold to Respondent unchanged in any manner after being received by California suppliers from sources outside California. Respondent devotes little argument space in its brief to this issue and cites no law in support of its denial of jurisdiction.

    IAll dates hereinafter are within 1978, unless stated otherwise.

    2 As amended by the General Counsel at the hearing, with leave of the Administrative Law Judge.

    3All individuals are referred to herein by their last names.

    4The facts stated in this paragraph were acknowledged by Maxwell at the hearing.

    241 NLRB No. 31

    264

    PIONEER CONCRETE CO.

    Contrary to Respondent's apparent contention, it is not necessary when examining business transactions relative to the jurisdictional issue to limit applicable sales and purchases to those involved directly and immediately in interstate shipments. Congress delegates to the Board the full limit ofits own jurisdiction, which includes business 'affecting commerce' as well as that 'in commerce.'' Thus, the total amount, in excess of $6,000, proved by the General Counsel is within the ambit of the Board's jurisdiction.

    As argued by General Counsel, the only question is whether or not the purchases proved at the hearing are de minimis, and thus beyond the concept that they affected commerce. 6

    Clearly, the de minimis doctrine is not applicable herein...

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